JURIST Guest Columnist Chris Jones-Pauly discusses the misunderstandings regarding the indigenous laws of South Sudan in the context of transitional justice.

In December 2013 South Sudan exploded into civil war, three years after the South’s secession. The initial protagonists are Kiir, a Warrap Dinka, and Machar, a Nuer of Unity state. They signed the Agreement on the Resolution of the Conflict in South Sudan (ARCISS 2015) [PDF]. Part V prescribes transitional justice structures to hold all sides accountable for atrocities. Additionally traditional authorities are to identify meritorious claims for reparations.

Traditional leaders are ‘customary’ Kings (Shiluk, Azande), rain queens and kings (Lotuko), law chiefs, prophets (Nuer), drum masters (Murle), cattle camp chiefs, storytellers (re-phrasers). For centuries they have been responsible for governance of the more than 64 to 72 ethnic peoples in South Sudan. The Local Government Act 2009 [PDF] recognizes their autonomy to enact their own legislation. The Act never having been enforced, the struggle between autonomy and centralized political control rages on. The ruling liberation party and military, SPLM/A (Sudan People’s Liberation Movement/Army), praise the traditionalists for mobilizing during 50 years of fighting popular support. Yet traditional leaders recall hard time when they protested the SPLM/A confiscations of land, cattle and forced recruits. Chiefs continue today to constrain all armed groups whether SPLM/A or otherwise. One chief drew the line: for survival they could eat pigs but not cattle.

The 2015 ARCSS has not been enforced. More armed groups have emerged, splintering opposition to Juba. Some manifest territorial and ethnic affiliations, e.g. the seasoned General Cirillo Swaka, a Bari, of the Equatorias, though appealing to al the country. Combat has disrupted farming, causing famine. The stream of refugees will empty the country by more than half. Western donors seek desperately a solution.

In 2016 the NY Times and in the Financial Times featured op eds about transitional justice and traditional African justice. One, written in the name of Machar and Kiir, advocated reconciliation over trials in the planned Hybrid Court. The second op ed by a western diplomat recommended an UN/AU ‘trusteeship’ and involving ‘tribal constituencies’, i.e. traditional authorities. A third op ed by a western lawyer favored the traditional system to achieve peace, described as ‘restorative and reconciliatory’.

The point of this article is to argue that pitting traditional justice against justice in a Hybrid Court is inaccurate. It erodes principles of accountability that characterize traditional justice systems.

I prefer to call traditional law indigenous laws, or the peoples’ laws. I challenge the perspective that the South Sudanese peoples have no law rather ‘customs’ that are restorative and harmonizing. Already in the 1920s anthropologist Malinowski argued that westerners suffered from preconceived notions of ‘primitive’ or ‘savage’ society. It has no law only custom. He countered-argued: the ‘primitive’ has law and order distinct from morals and manners. Law he defined as a person has obligations (duty holder) and another person has rightful claims (rights). These obligations and claims are enforced by someone without personal ties to either party.

Half a century later British law professor Allot reaffirmed the argument that what is called customary is law. Even though it is not written down or legislated in the Austinian tradition, African indigenous law is law, people’s law, ‘legislated’ by the people, grown out of conscious choice and behavior within their environment. The ‘happy’ legislator in the positivist tradition is puzzled by the resistance of the people. ‘The legislator imposes and the people dispose.’ It is wise to pay attention to this resistance. Otherwise one runs the risk of failed legal reform and failed unity because the people’s law has been resisted. Prestigious western universities teach Islamic penal laws but not African people’s laws.

Many researchers coined the term restorative justice for indigenous traditional laws, restoring social harmony without being judgmental. The term is not South Sudanese, rather American. It brings victim and offender together to restore relationships.

Western tort law aims to restore the wronged person to as much wholeness as possible, e.g. bodily injury receives compensation for costs, or a negligent wrong invokes punitive damages. In criminal cases, like trafficking, victims may sue for damages in tandem with the state prosecutor. Nonetheless the tort or damages law is not labelled restorative. It is law, imposing liability for breaching an obligation. The term ‘restorative’ for African indigenous law implies that it is inferior to western laws.

The South Sudanese African indigenous laws require compensation/damages to right wrongs as well. The laws punish killings, rape, kidnapping, environmental damage with punitive damages depending on the circumstances. The peoples’ laws are judgmental.

Confusing western lawyers are feuds occurring after a trial in traditional court and damages paid. Contrary to western supposition, feuds constitute an offence, punishable with punitive damages.

Confusing too is a ritual pursuant to judgment and sentencing. A bull is slaughtered and the parties eat together regardless of who won or lost. It aims to alleviate lingering bitter feelings. Western law lacking such a concept does not understand it well. It is interpreted as reconciliatory or restorative. Translating concepts from one legal system into another is not an uncommon problem. For example, English trust law is not well understood in German courts.

In another ritual, depending on the offence, a goat is slaughtered, not to reconcile rather to cleanse perpetrator and victim. An offence poisons the society, just as murder in a western community sets people on edge. Cleansing rituals are too mystical for the western law.

Rituals are mistaken as the essence of the indigenous laws. The 1999 Wunlit peace agreement between Nuer and Dinka specified the offences committed and the legal punishment due. Bulls were slaughtered. The agreement failed ultimately because the ritual took place prior to the enforcement of the sentences.

Rejection of ‘customary’ laws stems from the belief that gender inequality forms the core of the entire indigenous system. Gender, racist and religious discrimination are perpetuated by western courts, but the west has faith its legal system will correct itself as litigants bring judicial challenges. The west has no faith in the indigenous ‘primitive’ society to use its legal principles to overcome discrimination in challenging cases. This attitude mirrors the preconception that African ‘customary’ law is restorative and reconciliatory, not law. By misconstruing the system westerners violate their own principles of comparing legal systems as equals.

If the traditional indigenous law is not taken seriously, it is vulnerable to politicization that favors a kind of ‘pre-trial’ acquittal without even naming the offenses. It perverts amnesty so leaders can escape accountability.

Accountability is known in the indigenous laws of South Sudan. It constitutes either a Grundnorm or a specific offense. When a chief acts against community interests, he is warned and his defense heard but if he continues, he is deposed. Even if a king does not resist detrimental government actions, even the king is to be deposed. The laws of deposing in some communities, like laws of impeachment, are well articulated while in some less precise. A British administrator (Driberg) confessed observing more democracy at the grassroots than had been pre-conceived (echoes of Malinowski). A chief is also punishable for defrauding the community, e.g. when mismanaging contributions of food in case of emergencies.

What role can traditional authorities play in the IGAD High Level Revitalization Forum for peace and transitional justice? Invited to sit at the table are the armed opposition and government military or militias. They are not categorized as members of their own ethnicities whose laws they have violated. Representatives of the peoples’ indigenous laws are not invited, reflecting the preconception that ‘simple’ traditionalists need no chance to articulate how their laws of accountability would apply. The presumption is that their ‘primitive’ tribal identity and their disrespect for females renders them unfit to judge with objectivity. Some westerners allege there is a danger of romanticizing traditional law. My response is that state law has been too long romanticized. To recall Allott, the peace-makers will impose and the people will dispose. Those who do not wish to face a Hybrid Court will hide behind misconstruing traditional justice as reconciliatory without imposing liability or accountability.

The political and aspiring rulers of the South Sudan state had an opportunity to prove their ability to rule but have failed, disrespecting not only the international norms of decency but the laws of their communities.

Transitional justice is no stranger to traditional chiefs. During the civil war with Khartoum chiefs heard cases brought against SPLM/A commanders, who were punished for wrong doings according to the traditional laws. After the ARCSS 2015 a group of chiefs formed in W. Equatoria an NGO to discuss transitional justice. The Dinka Bor chiefs assembled in 2016 to present a written version of their laws with the purpose of defying interference from the state magistrates. Ignoring rules of appeals, the magistrates arbitrarily removed cases from chiefs’ courts. Recently the Nuer Koma people forced the Juba-imposed governor to delay forming his administration until he agreed to be held accountable for providing public services. In Bahr al Ghazal food aid donors conceded that their rules of distribution caused conflict because they violated the peoples’ laws of social welfare. If the chiefs were involved the people could hold them accountable for maldistribution, otherwise the community has no similar power over the civilian distributors.

Hybrid Court is also no stranger to the chiefs. In a judicial innovation during the CPA (Comprehensive Peace Agreement 2005-2011) [PDF] era, cattle raiding cases in the Lakes region were assigned to a mixed court of chiefs and a state magistrate. It heard a backlog of unsettled cases that provoked feuding. The experiment expired after two years for lack of funds. The idea stemmed from the Tanzanian experience of courts presided over by three traditional authorities and one magistrate, who can be outvoted.

The traditional leaders need a chance to articulate in unambiguous terms their laws that punish leaders who breach the traditional laws of accountability. Their communities need the chance to authenticate their chiefs – some have been selected according to their indigenous laws while some are appointed by the SPLM/A, and are regarded as ‘forced’ chiefs such as among the Twic Dinka Ayual in 2012. Inter-communal courts have been formed at the initiative of chiefs so as to achieve more objectivity. Westerners ought to disavow themselves of the preconception that this is not a ‘tribal’ conflict. Each cultural group, no matter how small, sees itself and its culture as equal to any other and so power is to be equally distributed among the cultural groups. Dominance is not only political. It is economic as well. Once the oil fields are under the control of one group, this will be regarded as economic dominance. Again some westerners would interpret resistance to dominance as a power play, that is, traditional leaders who hold power do not wish to lose their power over their communities. For a westerner would disbelieve the traditional law of accountability because it does not fit into the portrayal of the indigenous as restoring harmony, and above all is mere customary. This view blinds westerners to the need to take seriously the history of what dominance means in South Sudan. Traditionally there can be no dominance among the South Sudanese. European ethnographers alike were stunned by the extraordinary self-consciousness and independence of the peoples they encountered, having preconceived the ‘primitive’ as obedient and easy to cower. Anthropologist/Administrator Driberg warned in 1927 chiefs are no subordinate government servants rather leaders of their people. The Azande kingship is shared among clans. My own experience confirmed the chiefs’ fearlessness, rebuking In public local and UN officials for taking the people for gullible fools. This is already a warning sign of the fear of dominance by any one tribe or clan. Proportional representation leading to over representation of any one cultural group has been feared as far back as the ’70s.

Inviting traditional chiefs and recognizing the merits of the peoples’ laws is novel for the western-minded. All other peace efforts have failed. It is time to try another approach and call on those strengths of traditional laws that would serve transitional justice and strengthen their long held but suppressed rules of accountability.

Chris Jones-Pauly, Dr. phil. (Comparative Law, London), Dr. jur. (Harvard, public international law) has studied and field researched the laws of the peoples of, Botswana, Kenya, Malawi, Tanzania and of more than 25 peoples of South Sudan, organizing there five Councils of Traditional Authority Leaders and one in Nuba Mountains, careful to distinguish between what is law and what is misapplication of the law. Often the misapplied law is taken as the law in certain assessments of the indigenous laws. She has been an Associate Professor at the University of Nairobi, Harvard Law School, the Oxford University Centre for Socio-Legal Studies, the Universities of Bonn, Bielefeld and Bayreuth. She also serves as independent consultant/advisor for numerous UN and bilateral donor organizations in justice reform, gender equality, human rights, social protection, constitutionalism.

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